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P.K.Gopalan vs State Of Tamil Nadu on 19 December, 2019

Crl.O.P.No.3913 of 2013

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 19.12.2019

CORAM:

THE HON’BLE MR.JUSTICE P.VELMURUGAN

Crl.O.P.No.3913 of 2013
and M.P.No.1 of 2013
—-

1.P.K.Gopalan
2.Priyadarsini
3.P.K.Srikumar
4.Suja Suresh
5.R.Suresh ..Petitioners

Vs
1.State of Tamil Nadu
rep. by The Assistant Commissioner of Police
Central Crime Branch
Egmore, Chennai-8

2.G.Harshita Srikumar ..Respondents
Prayer: Crl.O.P., filed under Section 482 of Cr.P.C., praying to call
for the records praying to quash the First Information Report in
Crime No.390 of 2011 on the file of 1st respondent, as the same is
an abuse of process of law.

For Petitioners : Mr.S.Karthikeyan

For Respondents : Mr.R.Suriya Prakash, Govt.Advocate
for R1
Ms.Susanna Prabhu for R2.

ORDER

The defacto complainant/2nd respondent filed a complaint

before the 1st respondent Police. The first respondent registered the

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Crl.O.P.No.3913 of 2013

case for the offence under sections 498 A and 506(i) of SectionIPC in Crime

No.390 of 2011 on 08.09.2011. During the investigation, taking

note of the allegations in the complaint, FIR was registered.

Aggrieved by the registration of the case in FIR in Crime No.390 of

2011 against all the accused/petitioners herein, they have filed the

present Crl.O.P., seeking to invoke Section 482 Cr.P.C., and to

quash the FIR in Crime No.390 of 2011.

2. The learned counsel for the petitioners would submit that

FIR itself does not speak about the nature of commission of offence

the petitioners committed and that there are no particulars given.

The 2nd respondent, with the help of Police wanted to take away the

child from the petitioners and that is why the complaint is filed

against the petitioners.

3. The learned counsel for the petitioners submitted that the

3rd petitioner herein viz., P.K.Srikumar, husband of the 2nd

respondent, subsequently filed Custody O.P., in Original Petition

No.285 of 2015 before the Original side of this court, which petition

along with C.S.No.129 of 2013 filed by the 3rd petitioner herein for

the relief of declaration that order/Judgment passed by the superior

court of California, is conclusive and binding and for consequential

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Crl.O.P.No.3913 of 2013

declaration that the appellant/plaintiff is the natural guardian of his

minor son, have been dismissed, for which a challenge is made in

O.S.A.No.249 and 250 of 2015. A Division Bench of this court, by

Common Judgment dated 25.07.2006, allowed the Original Side

Appeals and custody of the minor child was handed over to the 3 rd

petitioner/appellant therein. It is observed in the said judgment that

the defacto complainant/2nd respondent, virtually snatched the child

from the 3rd petitioner herein/appellant with the help of police and

further stated that the child, being citizen of USA, the Superior

Court of California is having most intimating contact.

4. The learned counsel for the petitioners has placed reliance

on the following decisions:_

(i) PREETI GUPTA AND ANOTHER VS. STATE OF JHARKHAND AND

ANOTHER [(2010) 7 SCC 667]

(ii) SUSHIL KUMAR SHARMA VS. UNION OF INDIA AND OTHERS

[CDJ 2005 SC 530]

(iii) CHANDRALEKHA AND OTHERS VS STATE OF RAJASTHAN AND

ANOTHER [CDJ 2012 SC 880]

(iv) GEETA MEHROTRA AND ANOTHER VS. STATE OF U.P. AND

ANOTHER [CDJ 2012 SC 730].

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Crl.O.P.No.3913 of 2013

5. The further contention of the learned counsel for the

petitioners is that though the complaint was registered on

08.09.2011, the 1st respondent police sent the FIR to the court only

on 15.05.2012, i.e., after eight (8) months, which itself shows that

the police-1st respondent and 2nd respondent are hand in glove, in

order to take custody of the child and they foisted a false case.

Therefore, the petitioners filed the present Crl.O.P., seeking to

quash the FIR in crime No.390 of 2011 registered against them. In

this regard, the learned counsel placing reliance on the judgment of

the Honourable Supreme Court in the case of SectionSushil Kumar

Sharma vs. Union of India and Others [CDJ 2005 SC 530]

submits that the Supreme Court has held that as far as Section

498A of IPC is concerned, the courts cannot sparingly exercise its

power as the in-laws are unnecessarily dragged and therefore,

allegations can be appropriately dealt with. Therefore, the FIR in

Crime No.390 of 2011 has to be quashed against the petitioners.

6. The learned Government Advocate (Criminal Side)

appearing for the 1st respondent submits that based on the

complaint, the 1st respondent Police registered the case against the

petitioners. During the investigation, this court granted stay and

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Crl.O.P.No.3913 of 2013

therefore, the first respondent could not continue further

investigation.

7. The learned counsel for the 2nd respondent would submit

that the marriage between the 2nd respondent and the 3rd petitioner

took place on 31.08.2007 in India. Soon after the marriage, they

went to U.S.A. Prior to the marriage, 2nd respondent was working in

U.S.A and was having H1B visa. The 3rd petitioner was also working

in U.S.A. After the marriage and during the wedlock, they were

blessed with one male child born on 16.09.2008 and due to change

of circumstances, the 2nd respondent lost job and the 3rd petitioner

demanded her to get a job in U.S.A or get money of 4000 US $

from her father, otherwise, he will not take her to U.S.A. and they

also taken custody of the child from the mother. At that time, the

age of the child was 13 months. Further leaving the natural

guardian of the child in India, the 3rd petitioner went to USA with

the child and demanded 4000 US$ from the father of the 2nd

respondent or job of the 2nd respondent in U.S.A.. Since she could

not get job in U.S.A, she was harassed and the petitioners took

away the child and they never shown the child to the 2 nd

respondent and the petitioners harassed the 2nd respondent

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Crl.O.P.No.3913 of 2013

mentally and physically and taken custody of the child and she

having no other option except to file complaint, filed a complaint

before the 1st respondent Police and the police have not taken

action. Therefore, the 2nd respondent herein, filed a complaint

before the XIV Metropolitan Magistrate, Egmore, Chennai in

C.C.No.5507 of 2012 against the said police officials, viz., the police

who has not taken action in respect of her complaint and the said

complaint is also pending. In such circumstances, the learned

counsel for the 2nd respondents submits that the case has to be

investigated and after finding out the truth, accused has to be

punished and therefore, this petition for quash is liable to be

rejected.

8. Heard the learned counsel on either side and perused the

records.

9. Admittedly, 3rd petitioner and the 2nd respondent/defacto

complainant are the husband and wife. Their marriage took place on

31.08.2007 in India. After marriage, they left to U.S.A. and they

were both working in U.S.A. During the wedlock, they were blessed

with one male child. Subsequently, 2nd respondent lost job and all

the petitioners came to India. According to the 2nd respondent,

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Crl.O.P.No.3913 of 2013

since she lost job, the 3rd petitioner demanded money or to get a

job and unless she gets job, she cannot come to U.S.A and live with

him and if she wants to stay with 3rd petitioner, she has to get 4000

US$ from her father. But the 2nd respondent’s father is not in a

position to arrange for money and the 2nd respondent’s father is

also an aged person. Further, the 3rdpetitioner herein had taken the

child from the mother/2nd respondent and having custody of the

child.

10. According to the petitioners, they have not committed any

offence and they did not harass the 2nd respondent. Only the 2nd

respondent does not want to come to U.S.A and wanted to remain

in India and that is the reason why she has not chosen to come to

U.S.A. Since the 3rd petitioner is working in U.S.A, he wanted to

take the child. He even approached U.S.A court and got custody of

the child. The said order was not challenged before this court.

Further, this court, vide order dated 25 July 2016 in O.S.A.Nos.249

and 250 of 2015, granted custody in favour of the 3 rd petitioner.

The 3rd petitioner with the help of police, taken the child and the

child is in his custody, by following the due process of law.

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Crl.O.P.No.3913 of 2013

11. Since FIR dated 08.09.2011 itself was sent to the court

only after 8 1/2 months, i.e., on 15.05.2012, the same itself shows

that the duty of the police to investigate and file charge sheet has

not been duly followed by them, but the 1st respondent police kept

the FIR itself as pending. Once a complaint is filed, it is the duty of

the police to register the FIR and send the same to Court. But in

this case, it is seen that the FIR has been kept pending in the police

station itself and not sent to the court and thus, it is an harassment

to the 2nd respondent who lodged a complaint. Even in the FIR , no

details are given and it does not speak about what offence the

petitioners committed. The 1st respondent police simply mentioned

the names of the accused. The main reason stated in the complaint

is that the accused persons taken away the child from the 2 nd

respondent and there was dowry harassment. No other reason was

stated in the complaint. As such the complaint is shown to be falsely

lodged.

12. The fact remains that the 2nd respondent filed a complaint

before the 1st respondent against all the petitioners. It was pointed

out by the learned counsel for the petitioners that only the names of

the petitioners is mentioned in the FIR and she wanted the

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Crl.O.P.No.3913 of 2013

petitioners to hand over the child to her. Further, dowry harassment

is also alleged and no other reasons are given in the said complaint.

13. In any event, prima facie, there are allegations in the

complaint. It is for the 1st respondent to investigate the matter. The

1st respondent is the Investigating Agency and they have to

investigate the matter and find out as to whether the allegations in

the complaint are true or not and other particulars have to be

investigated and find out the truth.

14. The settled proposition of law is that FIR is not an

encyclopedia and further the complaint given by the 2nd respondent

as against the petitioners herein shows that the allegations are

demand of dowry and seeking to hand over the child which was

taken forcibly from the natural guardian. In the considered opinion

of this court, the veracity of all the above said allegations will come

to light only after investigation and not at this stage. Only after due

process of investigation, who has committed the offence and what

sort of offence committed in the matter, will be revealed. Therefore,

as to whether the petitioners herein had really demanded money

and jewellery or not, whether they have really taken the child

forcibly from the 2nd respondent or not, would come out only during

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Crl.O.P.No.3913 of 2013

the process of investigation and not at this stage. Mere lack of

sufficient details in the FIR, is not the reason for invoking Section

482 Cr.PC. No doubt, the complaint/FIR was registered on

08.09.2011 but the same was sent to the court only on 15.05.2012

that is they sent the FIR only after 8 ½ months. The delay in

sending the FIR to the court is not a ground to quash the complaint.

After investigation, the prosecution has to explain the reason for the

delay and that whether the delay is explained properly or not, will

be decided only during trial and not at this stage, as the case is

pending for investigation.

15. The fact that 3rd petitioner is living in U.S.A is not

disputed. Further the fact that 2nd respondent is living in India, is

also not disputed. In the mean while, disputes also arisen. This

court, vide order dated 25 July 2016 in O.S.A.Nos.249 and 250 of

2015, has also granted custody of the child to the 3rd petitioner.

Now the Investigating Agency has to find out whether any

harassment of dowry was in existence at the time of filing the

complaint. In any event, the observations made by this court in

O.S.A.Nos.249 and 250 of 2015 dated 25 July 2016, may not be a

ground to quash the FIR, as the said proceedings was for the

custody of the child, which has been filed as Original Petition before

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Crl.O.P.No.3913 of 2013

this court. Therefore, the Investigating Agency has to investigate

the complaint independently without any prejudice or influenced by

the observations made by this court.

16. As far as the citations referred to by the learned counsel

for the petitioners are concerned, the same are not applicable to the

case on hand.

17. No doubt in matrimonial case, the Investigating agency

and the court has to slow down the proceedings. But at the same

time, considering the nature of allegations in this case, which are

found be very serious of kind, and considering all the facts and

circumstances of the case, this court is of the view that truth will

come out only after investigation. Therefore, it is not a fit case to

invoke Section 482 Cr.P.C to quash the complaint. Therefore, this

Crl.O.P.is dismissed. Consequently, connected miscellaneous

petition is also closed.

18. Before parting with the case, it is relevant to make the

following observations:-

The learned counsel for the petitioners while arguing the case,

pointed out that the reason for not sending the FIR to the court is

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that no details given in the FIR and further the FIR not sent to the

court immediately, but only on 15.05.2012 i.e., after 8 1/2 months.

Therefore, by order dated 18.12.2019, this court called for FIR from

the concerned court. Today, the original FIR is produced before this

court. On perusal of the FIR, it is seen that FIR is sent to court only

on 15.05.2012 at 11.45 a.m. The endorsement of the Magistrate

itself proves that FIR reached the court only on 15.05.2012. The FIR

in Crime No.390 of 2011 is registered on 08.09.2011 itself by

V.Shanthi Devi, Sub Inspector of Police, Anti dowry cell, Central

Crime Branch, Greater Chennai City Police, Chennai. In such view of

the matter, the Commissioner of Police, Greater Chennai City Police,

Chennai, is directed to take action against the Officers responsible

in sending the FIR belatedly i.e, the Police who registered the FIR

on 08.09.2011 in Crime No.390/2011 and the same was sent to the

court only on 15.05.2012 at 11.45 a.m. After taking action as

directed above, action taken report is to be sent by the

Commissioner of Police, to this court, on or before 17.02.2020.

Registry is directed to call for the action taken report as narrated

above and post the matter on 17.02.2020 for compliance.

19.12.2019
Index:Yes/No
Note:Issue order copy on 26/12/2019
nvsri

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Crl.O.P.No.3913 of 2013

P.VELMURUGAN,J.

nvsri

To

1The Assistant Commissioner of Police
Central Crime Branch, Egmore, Chennai-8.

2. The Section Officer, Criminal section, High Court, Madras.

3.The Public Prosecutor Office, High court,MADRAS.

Crl.O.P.No.3913 of 2013

19.12.2019

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